Trespass

…………………….A………………….

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of the High Court of Anambra State delivered in suit no. A/406/2013 on 21/11/2016. The respondents as the plaintiffs in the suit claimed the following reliefs against the appellants as the defendants:
The sum of N10,000:00 (Ten Million Naira Only) being general and special damages for the unlawful detention of the plaintiffs by the police based on the false report of the defendants.
The appellants counterclaimed against the respondents for:
N10,000,000:00 (Ten Million Naira) for special and general damages imposed on the defendants in the use and quiet possession of the subject property viz. john O. Okechukwu’s compound opposite Immanuel Anglican Church, Iruokwe village, Enugwu ukwu.

The dispute arose from construction of a culvert by 1st respondent over a gutter which the government constructed while building a road which passes by the area where the parties reside. The culvert was being constructed over the gutter to enable the residents vehicles pass over the gutter which was left uncovered.

The 2nd appellant got the workmen employed by the 1st respondent arrested by the police on the allegation that the culvert extended and encroached on the 1st appellant’s land. The 1st appellant then erected a dwarf wall which the respondents alleged cut off a substantial part of the culvert. The 1st appellant wrote a petition to complain about the dwarf wall to Anambra State Urban Development Board (ASUDEB). The board inspected the wall and issued a removal/demolition order to the 1st appellant to remove the wall within 14 days. According to the 1st appellant, ASUDEB demolished the wall before expiration of the 14 days stated in the notice. The 1st appellant then wrote a petition to the police and alleged that the respondents conspired with the Zonal Manager of ASUDEB to illegally and maliciously demolish his fence. The respondents alleged that the police invited them and when they reported at the police station, they were detained and only released on bail in the evening at the instance of the appellants.
The appellants and the respondents testified in support of their claims and called no other witness.
After hearing both parties, the Court awarded the sum of N500,000:00 (Five Hundred Thousand Naira) as damages for the unlawful detention of the respondents by the police instigated by the appellants. The appellants counter claim was dismissed.
Dissatisfied with the judgment, the appellants filed a notice of appeal on 14/1/2017. The appellants brief of argument was filed on 3/4/2017. The respondents brief of argument was filed on 5/5/2017. Appellants reply brief was filed on 22/5/2017. The appellants formulated 21 issues for determination. The respondents formulated 3 (Three issues) for determination. I have considered the grounds of appeal along with the issues formulated by both parties. My view is that the issues thrown up for determination in this appeal are:
1. Whether on the entire evidence adduced by both parties, the learned trial judge was right in awarding damages against the appellants.
2. Whether on the entire evidence adduced by both parties, the learned trial judge was right in dismissing the appellants counter claim.
On issue 1, the appellants counsel submitted that the learned trial judge misdirected himself when he held that the onus rests squarely on the defendants to show that they were justified in writing the petition and they failed to discharge this burden in the circumstances. He further submitted that the decision is wrong because the onus of proof in civil cases shifts and does not rest squarely on one party. He referred to DALE POWER SYSTEMS PLC V. WITT & BISCIT LIMITED (2007) ALL FWLR (PT. 394) 353 CA. Counsel also submitted that the learned trial judge misdirected himself when he awarded damages against the appellants and failed to consider the fact that the illegal and malicious demolition of the 1st appellant’s wall by ASUDEB and its officials was instigated by the respondents, with their involvement and commitment and before the expiration of the 14 days stated in the notice posted on the wall of the 1st appellant’s compound. It is submitted that the learned trial judge failed to consider the fact that the petition written to ASUDEB (Exhibit P3) is false because Exhibit D2 shows that the wall was constructed behind an electric pole and in alignment with the edge of the 1st defendant’s wall fence and did not block the access road as falsely alleged by the respondents while Exhibit D1 shows that the 1st respondent illegally blocked the access road by dumping stones there for one month. Counsel argued that the petition written to the Commissioner of Police (Exhibit P5) was written in utmost good faith by the 1st appellant and has nothing to do with the 2nd appellant. He further argued that the 2nd appellant’s joinder in the suit is malicious and intended to harass and intimidate him when he is not the owner of the property.
In his response to the above submissions, the respondents counsel referred to the entire pleadings and the evidence of the appellants, he submitted that the learned trial judge examined the evidence and rightly concluded that the appellants admitted writing Exhibit P5 which is deemed proved and needs no further proof. He referred to KAYILI V. YILBUK (2015) 7 NWLR (PT. 1457) 26 AT 63. He argued that Exhibit P5 was the basis for the invitation and detention of the respondents and it was through Exhibit P5 that the appellants set the law in motion against the respondents.